“Power must never be trusted without a check”-John Adams. When a government is to be formed, one of the major concerns of the forefathers of a nation is that there is enough liberty given to each organ of the state so as to ensure their proper functioning and liberty, the government is supposed to be divided into three separate organs (the legislature, the executive and the judiciary )with a special system of ‘checks and balances’. This was the system proposed by Montesquieu an eighteenth century philosopher. Almost all forms of governments around the world, including the Indian Government tried to adopt a similar structure. It was a good beginning of the process for forming a successful government, however the problem starts when we enter into the twenty first century and the government still remains hung over to the ideas of Montesquieu and his theory of having only three organs – the legislature, the executive and the judiciary. In order to understand this issues with this theory, we shall discuss the ideas and critiques pointed out by Bruce Ackerman in his article “Goodbye Montesquieu”, where he explains how a “a new separation of powers “ is emerging in the twenty first century. For the ease of understanding lets consider the situation with the Indian Government. The Indian Government has not adopted a rigid separation of powers, which complicates the situation even more. There is a broad categorization of the three major organs – the legislature, the executive and the judiciary, but their boundaries are not as strong as that in the United States of America. In a nation like India, which is the world’s largest democracy, one has to be cautious while demarcating the organs of the government. As observed by Nicholas Robinson in an article, there is a continuous tug of war between the legislature and the executive for power. We saw how, political redress though having a higher level of access to the people could not fetch them even a satisfactory level of remedy while the judiciary which has a lower access to people had a better rate of grievance redress. The winner among the three being administrative redress, which leads to the formation of another organ dividing the ‘pure trinity’- delegated legislation. The legislature in India is a huge organ with a number of powers and responsibilities, in order to reduce its burden the legislature is often delegated to the executive, once again diminishing the line of separation of powers between the three organs. So how does one draw a line or keep a balance while separating powers? This proves that India does not really follow a rigid separation of powers, as also observed by Hona¸ble Chief Justice B.K. Mukherjea in the case of Ram Jawaya V. State of Punjab: “The Indian Constitution has not indeed recognized the doctrine of separation of powers in the absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption by one organ or part of the State of the functions that essentially belong to another.” Thus we can say that the problem is not really separation of powers but when the separated powers and functions are not properly defined. The most disputed organ of all is the executive as it is considered that too many powers are conferred upon them with the entire functioning of the bureaucracy and the delegated legislation. There are numerous debates on excessive delegation that is going around in this century. In cases like In Re Delhi, the issue which was discussed was that can the governor make a law in a state with a mere issuance of notification? Does this result to excessive delegation? In our opinion it does as making of laws is the main function of the legislature and executive should be delegated these function only in extreme cases. The legislature need not delegate so many powers to the executive that it loses its face value. Again in the caseof Ram Jawaya V. State of Punjab, the executive made a law without a back up from the legislation. The problem with the executive making laws is that there is not enough debate on it in the parliament and the judiciary also does not always strike down delegated legislation as to be ‘pro-welfare’. Thus we can observe that there are a lot of problems within the organs of the government and not enough reason are given by these organs before or after passing of a legislation. Ackerman in his article further discusses the war for power between the bureaucracies and the politicians in a parliamentary form of a government, where the Prime Minister can try to populate the administration with their supporters in order to maintain support. On the other hand the civil servants try to get their way, as they are a part of the system for a longer period of time than the politicians, so they surely have an advantage. Bruce Ackerman has clearly pointed out the need for understanding separation of powers in his article ‘Good Bye Montesquieu’. While Montesquieu’s trinity did fit and suffice the segregation of organs of the 18thcentury it is hard to implement the same in today’s scenario. Bruce has acknowledged and recognized the new and independent organs functioning in the present society, which do not fit in the classic three organs of separation of power. A need to have in more blocks or more such organs is felt. However to draw a clear demarcation among them would be undesirable, an absolute and complete separation of powers is theoretically and practically impossible. If we are to understand and put separation of powers in a formula the essential components would be: a. The same individuals can’t be simultaneously present in more than one organs of government. b. and any particular organ of government ought not control or meddle with the work of an alternate. c. That one organ of government ought not practice the capacities of an alternate. Such a formula is practically impossible to implement when machinery is such dependent on function of each of its organs that a communication amongst them is indispensable. What we can do is that a fourth entity can be brought into existence so that the tussle for power among the organs can be checked and regulated for a smooth functioning of the government. A hint to such a measure can be derived from the following observation: InPeople’s Union for Civil Liberties v. Union of Indiathe Court observed that rule making is the function of the executive. As the learned Chief Justice Velma has pointed out in his Dr. K.L.Dubey Lecture: “Judiciary has intervened to question a ‘mysterious car’ racing down the Tughlaq Road in Delhi, allotment of a particular bunglow to a Judge, specific bunglows for the Judge’s pool, monkeys capering colonies to stray cattle on the streets, cleaning public conveniences, and levying congestion charges at peak hours at airports with heavy compliance of its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance.” The Indian Judiciary is now moving from Judicial Activism to Judicial Adventurism. Policy decisions are best left to the executive. It is indisputable that Courts cannot run the government. If it tries to do that it would defeat the very purpose of the Constitution. Now the question that we are faced with is who will check such downtown approach of powers and in turn who will keep a check upon the organ checking the three organs itself? An evident trouble is that the claims made for the sake of inter-branch equalization for example, that development has vexed the offset of force between the limbs are made without passing on why we ought to think about that balance.Such claims rest on expected remarkable contrasts between the limbs of government; the conveyance of power around the extensions matters in light of the fact that those organizations won’t choose addresses in the same way. That instinct about inter-extension distinction is taken as truth, however it is pitifully underpinned furthermore open to address. Nonetheless, understanding why we ought to think about this inquiry is a venture forward. It doesn’t, nonetheless, safeguard the idea. In fact, it is a sad undertaking to discuss equalization around the extensions of government. We have not verged on articulating a dream of what a perfect equalization might look like. Even assuming that we had handled that regularizing inquiry, we have no real way to measure the circulation of force around the extensions sometime or another in time and no strategy to anticipate the impact of an institutional plan. In short, we don’t comprehend what offset implies, how to measure it, or how to foresee when it could be endangered. All these inadequacies are part of the way clarified by the last and most central trouble with this thought. Inquiring about balance equalization is incongruous in light of the fact that it expects that limbs of government are unitary substances with durable investment, yet that is not accurate. The establishments of the national government are made up of people and sub-establishments with changing impetuses that don’t conveniently track the establishment inside which they are placed. Hence there can never be a separation and can never be a cent percent accurate measure for checking the intrusion of one limb of the government into the another and one trying to overpower the another. In strict sense the principle of separation of powers can’t be connected in any up to date Government either may be U.K., U.S.A., France, India or Australia. At the same time it doesn’t imply that the standard has no significance now a days. Government is a natural solidarity. It can’t be separated into air tightcompartments. History demonstrates this. Assuming that there is a complete partition of forces thegovernment can’t run easily and adequately. Smooth running ofgovernment is conceivable just by co-operation and shared alteration of all the organs of the administration. Prof. Garner has rightly said, “the doctrine is impracticable as a working principle of Government.” It is not conceivable to order the capacities of every one of the three extensions of Government on numerical foundation. The perception of Frankfurter is prominent in this association. As stated by him “Enforcement of a rigid conception of separation of powers would make Government impossible.” It is our idea that the precept of Montesquieu is not just a myth, it additionally conveys a truth, yet as in every organ of the Government ought to function on the guideline of “Checks and Balances” connoting the reality that none of the organs of Government ought to usurp the fundamental capacities of the other.
Ram Jawaya V. State of Punjab AIR 1955 S.C. 549 AIR 1951 S.C. 332 Ram Jawaya V. State of Punjab AIR 1955 S.C. 549 People’s Union for Civil Liberties v. Union of India1997 1 SCC 301 People’s Union for Civil Liberties v. Union of India1997 1 SCC 301
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